UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HATCH, DONALD J.

v.

DC


96-7247a

D.C. Cir. 1999


*	*	*


Tatel, Circuit Judge: Under Sandin v. Conner, segre- gative confinement
in prison implicates a liberty interest  protected by the Due Process
Clause of the United States  Constitution only if it "imposes atypical
and significant hard- ship on the inmate in relation to the ordinary
incidents of  prison life." 515 U.S. 472, 484 (1995). In this case
brought  by a Lorton inmate claiming a liberty interest in avoiding 
such confinement, we must define "the ordinary incidents of  prison
life"--the comparative baseline for determining wheth- er appellant's
segregation was an "atypical and significant  hardship." Considering
Sandin's language and objectives,  we hold that due process is
required when segregative con- finement imposes an "atypical and
significant hardship" on an  inmate in relation to the most
restrictive conditions that  prison officials, exercising their
administrative authority to  ensure institutional safety and good
order, routinely impose  on inmates serving similar sentences. For
appellant, these  conditions include the usual conditions of
administrative seg- regation at Lorton. They also include more
restrictive condi- tions at other prisons if it is likely both that
inmates serving  sentences similar to appellant's will actually be
transferred to  such prisons and that once transferred they will
actually face  such conditions. Because the district court did not
apply this  standard, we reverse its grant of summary judgment for 
appellee and remand for further consideration of appellant's  due


I


Appellant Donald Hatch is a District of Columbia convict  serving
multiple sentences for armed robbery, kidnapping,  sodomy, and rape.
The events giving rise to this suit oc- curred while Hatch was an
inmate at the Lorton Correctional  Complex. Because the district court
granted summary judg- ment for the District, we describe the facts in
the light most  favorable to Hatch. See Fed. R. Civ. P. 56(c); DeGraff
v.  District of Columbia, 120 F.3d 298, 299-300 (D.C. Cir. 1997).


On January 5, 1994, while working as head clerk at Lor- ton's law
library, Hatch got into a fight with another prisoner 


over the use of a copy machine. Immediately after the  incident, the
prison Housing Board, which "determine[s] ap- propriate housing
placement" to ensure prison safety and  security, D.C. Mun. Regs. tit.
28, s 522.1 (1987), assigned  Hatch to administrative segregation, a
form of solitary con- finement commonly used to separate disruptive
prisoners. In  addition, Hatch received a disciplinary report charging
him  with fighting, lack of cooperation, and creating a distur-
bance--all "Class II" offenses under Lorton regulations. See  id. ss
503.1, 503.4, 503.5, 503.11.


On January 11, Hatch appeared before the prison Adjust- ment Board,
which adjudicates charged offenses and imposes  disciplinary
penalties. See id. ss 508-515. Due to a mistake  in the disciplinary
report, the Adjustment Board dismissed all  charges. The next day, the
Housing Board met to consider  Hatch's confinement. Finding that Hatch
posed a threat to  the orderly operation of the prison, the Housing
Board rec- ommended that he remain in administrative segregation. 
Hatch had no notice of the Housing Board meeting, did not  attend the
meeting, and had no opportunity to testify or  present evidence.


On January 20, the Adjustment Board, which had previous- ly dismissed
the charges against Hatch, met again to consider  the same charges.
The Adjustment Board denied Hatch's  requests to speak on his own
behalf, to cross-examine adverse  witnesses, and to call witnesses,
including the writer of the  disciplinary report. The Board acquitted
him of creating a  disturbance and lack of cooperation, but found him
guilty of  fighting. It sentenced him to fourteen days of adjustment 
segregation, another form of solitary confinement which, un- like
administrative segregation, punishes individual inmates  for specific,
proven acts of misconduct.


On March 21, the Housing Board, as required by Lorton  regulations, see
id. s 527.1, conducted a sixty-day review of  Hatch's status.
Determining that Hatch no longer presented  a "management problem," it
recommended that he be re- turned to the prison's general population.
Supervising offi- cials approved this recommendation in early April,
but Hatch 


remained in segregation until August 11--more than seven  months after
his initial placement in segregation. The Dis- trict offers no
explanation for this delay. Hatch claims that  Lorton officials kept
him in segregation because bed space  was unavailable in the general
population.


Although Hatch's confinement consisted of two weeks of  adjustment
segregation and twenty-nine weeks of administra- tive segregation, the
conditions of his confinement remained  basically the same throughout
the seven months. Confined to  his cell twenty-three and a half hours
per day on weekdays  and all forty-eight hours of the weekend, Hatch
had no  outdoor recreation and was not allowed to work or to visit the
 library, gym, health clinic, psychological services, mailroom, 
clothing and bedding exchange, or culinary unit. He had no  access to
a dentist despite four written requests to have a  broken, decayed
tooth extracted. He had no opportunity to  wash his clothes or get a
haircut. Whenever he left the cell  block, he was transported in
handcuffs and leg irons. Prison  officials confiscated his legal
papers and denied him access to  legal telephone calls for ninety


On June 24, while still in administrative segregation, Hatch  filed
suit against the District of Columbia in the United  States District
Court, alleging that his confinement in adjust- ment and
administrative segregation violated the Due Process  Clause of the
U.S. Constitution as well as D.C. regulations  governing Lorton. The
District moved to dismiss or, alterna- tively, for summary judgment.
After requesting additional  briefing on the conditions of Hatch's
confinement, the district  court granted summary judgment for the
District. See Hatch  v. District of Columbia, No. 94-1393 (D.D.C. Oct.
11, 1996)  ("Mem. Order"). Applying Sandin v. Conner and assuming 
Hatch's description of his confinement to be true, the court 
determined that he "did not suffer an 'atypical and significant 
hardship' " compared to "the typical restrictions imposed on 
prisoners in the general population." Mem. Order at 5. It  thus
concluded that under Sandin, Hatch had no liberty  interest in
avoiding either adjustment or administrative seg- regation. See id. at


Hatch appeals pro se, aided by court-appointed counsel who  filed
briefs and argued the case as amicus curiae. Our review  is de novo.
See Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.  1994).


II


Sandin v. Conner represents the culmination of a twenty- year effort by
the Supreme Court to clarify when restrictions  imposed by prison
officials on lawfully incarcerated inmates  constitute deprivations of
"liberty" within the meaning of the  Due Process Clause. Two basic
principles have guided the  Court's effort. The first is that prison
officials need "broad  administrative and discretionary authority over
the institu- tions they manage." Hewitt v. Helms, 459 U.S. 460, 467 
(1983). Recognizing the difficulty and complexity of operat- ing safe
and effective prisons, as well as the expertise of  prison officials,
the Supreme Court has repeatedly instructed  federal courts "to afford
appropriate deference and flexibility  to state officials trying to
manage a volatile environment."  Sandin, 515 U.S. at 482 (citing
cases); see also Hewitt, 459  U.S. at 470 ("[T]he safe and efficient
operation of a prison on  a day-to-day basis has traditionally been
entrusted to the  expertise of prison officials...."); Jones v. North
Carolina  Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977) (re-
quiring courts to "giv[e] appropriate deference to the deci- sions of
prison administrators and appropriate recognition to  the peculiar and
restrictive circumstances of penal confine- ment"). Accordingly, the
Supreme Court has refused to  " 'subject to judicial review a wide
spectrum of discretionary  actions that traditionally have been the
business of prison  administrators rather than of the federal courts,'
" Hewitt,  459 U.S. at 467 (quoting Meachum v. Fano, 427 U.S. 215, 225
 (1976)), making clear that the " 'withdrawal or limitation of  many
privileges and rights' " of prisoners is " 'justified by the 
considerations underlying our penal system,' " id. (quoting  Price v.
Johnston, 334 U.S. 266, 285 (1948)).


While recognizing the need to protect prison administra- tors'
discretion and flexibility, the Supreme Court has made 


equally clear a second, countervailing principle: "[T]hough his  rights
may be diminished by the needs and exigencies of the  institutional
environment, a prisoner is not wholly stripped of  constitutional
protections when he is imprisoned for crime."  Wolff v. McDonnell, 418
U.S. 539, 555 (1974). "There is no  iron curtain," Wolff said, "drawn
between the Constitution  and the prisons of this country." Id. at
555-56. The consti- tutional protections retained by prisoners include
those af- forded by the Due Process Clause against arbitrary depriva-
tions of "liberty." Some protected liberty interests flow  directly
from the Due Process Clause itself. See, e.g., Wash- ington v. Harper,
494 U.S. 210, 221-22 (1990). Others are  created by state laws
regulating the terms or conditions of a  prisoner's confinement. See,
e.g., Board of Pardons v. Allen,  482 U.S. 369, 376 (1987).
State-created liberty interests--the  focus of this case--have their
origins in Wolff, where the  Supreme Court held that a Nebraska
prisoner had a constitu- tionally protected liberty interest in
retaining good-time cred- its because Nebraska law "not only provided
a statutory right  to good time but also specifies that it is to be
forfeited only  for serious misbehavior." 418 U.S. at 557; see id. at
545-53  (discussing Nebraska statutes and prison regulations). Not-
ing that "the prisoner's interest has real substance," id. at  557,
Wolff concluded that "a person's liberty is ... protected,  even when
the liberty itself is a statutory creation of the  State" because
"[t]he touchstone of due process is protection  of the individual
against arbitrary action of government." Id.  at 558 (citing Dent v.
West Virginia, 129 U.S. 114, 123 (1889)).  Consistent with Wolff, we
have recognized that D.C. prison  regulations may give rise to
constitutionally protected liberty  interests. See, e.g., Ellis v.


The difficult question in a case such as this is how to  reconcile the
two principles at work in Sandin--that is, how  do we define the range
of state-created liberty interests  protected by due process without
unduly constricting man- agement prerogatives of prison officials?
Prior to Sandin,  courts struck the balance by recognizing liberty
interests  where state laws or regulations contained explicit language


circumscribing official authority to alter the conditions of a 
prisoner's confinement. The key case was Hewitt v. Helms,  supra,
where a Pennsylvania inmate challenged the adequacy  of proceedings
that resulted in his confinement in administra- tive segregation after
a prison riot. While observing that  administrative segregation does
not implicate "an interest  independently protected by the Due Process
Clause," 459  U.S. at 468, Hewitt found that the prisoner had a
protected  liberty interest in avoiding such segregation because state
law  "require[d] that certain procedures 'shall,' 'will,' or 'must' be
 employed and that administrative segregation will not occur  absent
specified substantive predicates--viz., 'the need for  control,' or
'the threat of a serious disturbance,' " id. at 471- 72 (quoting 37
Pa. Code s 95.103(b)(3) (1971)). "[T]he re- peated use of explicitly
mandatory language in connection  with requiring specific substantive
predicates," Hewitt ex- plained, "demands a conclusion that the State
has created a  protected liberty interest." Id. at 472.


Twelve years later, Sandin abandoned Hewitt's approach  for two
reasons. First, by "encourag[ing] prisoners to comb  regulations in
search of mandatory language on which to base  entitlements to various
state-conferred privileges," the Court  said, Hewitt's methodology
"creates disincentives for States  to codify prison management
procedures in the interest of  uniform treatment." Sandin, 515 U.S. at
481, 482. Second,  the Court said that "the Hewitt approach has led to
the  involvement of federal courts in the day-to-day management  of
prisons, often squandering judicial resources with little  offsetting
benefit to anyone." Id. at 482. Citing cases where  prisoners claimed
liberty interests in, among other things,  "receiving a tray lunch
rather than a sack lunch," id. at 483  (citing Burgin v. Nix, 899 F.2d
733, 735 (8th Cir. 1990)),  "receiving a paperback dictionary," id.
(citing Spruytte v.  Walters, 753 F.2d 498, 506-08 (6th Cir. 1985)),
and "not being  placed on [a] food loaf diet," id. (citing United
States v.  Michigan, 680 F. Supp. 270, 277 (W.D. Mich. 1988)), Sandin 
made clear that "the fine-tuning of the ordinary incidents of  prison
life" is a task for prison officials, not federal courts.  Id.


Although Sandin rejected Hewitt's methodology, it contin- ued to
"[f]ollow[ ] Wolff [in] recogniz[ing] that States may  under certain
circumstances create liberty interests which are  protected by the Due
Process Clause." Id. at 483-84. Criti- cally, however, the Court
refocused the test for identifying  state-created liberty interests on
what it considered "the real  concerns undergirding the liberty
protected by the Due Pro- cess Clause," id. at 483--namely, whether
the state had  deprived the prisoner of "an interest of 'real
substance,' " id.  at 480 (quoting Wolff, 418 U.S. at 557). Sandin
declared that  state-created liberty interests


will be generally limited to freedom from restraint which,  while not
exceeding the sentence in such an unexpected  manner as to give rise
to protection by the Due Process  Clause of its own force, nonetheless
imposes atypical and  significant hardship on the inmate in relation
to the  ordinary incidents of prison life.


Id. at 484 (citations omitted). Sandin thus "shift[ed] the  focus of
the liberty interest inquiry" from "the language of a  particular
regulation" to "the nature of the deprivation," id. at  481, or, as
the Seventh Circuit put it, "from whether there  was an entitlement
[conferred by the state] to whether the  entitlement was to some
meaningful amount of liberty," Wag- ner v. Hanks, 128 F.3d 1173, 1173
(7th Cir. 1997).


Although clear in its intent, Sandin's test for identifying  liberty
interests protected by the Due Process Clause has  proven easier to
articulate than to apply. See Brown v.  Plaut, 131 F.3d 163, 170 (D.C.
Cir. 1997) (identifying "a  number of unsettled questions about how to
apply Sandin").  The central difficulty in determining whether
segregative  confinement "imposes atypical and significant hardship on
the  inmate" is how to characterize the comparative baseline--i.e., 
how to define "the ordinary incidents of prison life." Two of  our
sister circuits have looked to conditions in the general  prison
population as the comparative baseline. See Beverati  v. Smith, 120
F.3d 500, 504 (4th Cir. 1997); Keenan v. Hall,  83 F.3d 1083, 1089
(9th Cir. 1996). Two other circuits have  looked to the typical
conditions of administrative segregation. 


See Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997);  Brooks v.
DiFasi, 112 F.3d 46, 49 (2d Cir. 1997). Taking a  different approach,
the Seventh Circuit has defined the base- line as the conditions of
non-disciplinary segregation in a  state's most restrictive prison.
See Wagner, 128 F.3d at 1175.  According to the Fifth Circuit,
segregation never implicates a  liberty interest unless it lengthens a
prisoner's sentence. See  Carson v. Johnson, 112 F.3d 818, 821 (5th
Cir. 1997). The  remaining circuits have applied Sandin's "atypical
and signifi- cant hardship" test, but without characterizing the
compara- tive baseline. See Bass v. Perrin, 170 F.3d 1312, 1318 (11th 
Cir. 1999); Perkins v. Kansas Dep't of Corrections, 165 F.3d  803, 809
(10th Cir. 1999); Mackey v. Dyke, 111 F.3d 460, 463  (6th Cir. 1997);
Kennedy v. Blankenship, 100 F.3d 640, 642  (8th Cir. 1996); Dominique
v. Weld, 73 F.3d 1156, 1160 (1st  Cir. 1996).


We too faced this issue in Brown v. Plaut, supra, another  due process
case brought by a Lorton prisoner challenging  his placement in
administrative segregation. But there we  found it unnecessary to
decide the "difficult and unsettled  questions of constitutional law"
implicated by Sandin. 131  F.3d at 165. Instead, we remanded the case
to the district  court to "decide, first, assuming that [the prisoner]
had a  liberty interest in avoiding administrative segregation, wheth-
er he received all the process that he was due." Id. at 172.  "If he
did," we said, "that will be the end of the matter." Id.  Consistent
with Brown, the District claims that assuming  Hatch had a liberty
interest in avoiding segregative confine- ment, Lorton officials
afforded him the process he was due.  Based on the record before us,


The parties in this case agree that if Hatch had a liberty  interest in
avoiding administrative segregation, then Hewitt  specifies the
minimum procedures for placing him in such  confinement. Those
procedures include "some notice of the  charges against him and an
opportunity to present his views  to the prison official charged with
deciding whether to trans- fer him to administrative segregation."
Hewitt, 459 U.S. at  476; see Brown, 131 F.3d at 171. Although a
hearing need  not occur prior to confinement in administrative


it "must occur within a reasonable time following an inmate's 
transfer." Hewitt, 459 U.S. at 476 n.8. We said in Brown  that these
"requirements are not elaborate, but they are real,  and must be
strictly complied with." 131 F.3d at 171.


Hatch alleges in his pro se complaint that he received no  notice of
the January 12, 1994 Housing Board hearing, that  he was not allowed
to attend the hearing, and that he had no  opportunity to present
witnesses or evidence. The District  nowhere disputes these
allegations, arguing instead that a  subsequent exchange of letters
between Hatch and Lorton  officials afforded him due process under
Hewitt. See 459  U.S. at 476 (noting that "[o]rdinarily a written
statement by  the inmate" will suffice to allow him to present his
views).  The record provides no support for the District's claim. The 
first acknowledgment of Hatch's letters by a prison official  did not
occur until February 28, over seven weeks after his  initial placement
in administrative segregation and over six  weeks after the Housing
Board hearing which Hatch did not  attend--hardly "a reasonable time
following [his] transfer."  Id. at 476 n.8. Moreover, nothing in the
record shows that  prison officials even considered the claims Hatch
raised in his  letters. The facts of this case are thus unlike those
in  Hewitt, where the Supreme Court found that a prisoner  assigned to
administrative segregation for misconduct had  received due process
because he "had an opportunity to  present a statement to [prison
officials]" at a hearing "five  days after his transfer," id. at 477,
and because he " 'had the  opportunity to have [his] version reported
as part of the  record,' " id. (quoting prisoner's statement on


With respect to his placement in adjustment segregation,  Hatch argues
that assuming he had a liberty interest in  avoiding such confinement,
then he was entitled to the more  elaborate protections specified in
Wolff, which include the  opportunity "to call witnesses and present
documentary evi- dence in his defense." 418 U.S. at 566. Disagreeing
with  Hatch, the District claims that Wolff is inapplicable because 
that case involved an inmate's loss of good-time credits, a 
deprivation more substantial than Hatch's segregative con-


finement. We need not decide the applicability of Wolff,  however,
because we think it safe to say that whatever  procedures are required
for placing an inmate in disciplinary  segregation (again, assuming a
liberty interest in avoiding  such confinement), they must at least
encompass the Hewitt  procedures that the District says are required
for placing an  inmate in administrative segregation. The record in
this case  shows that Lorton officials failed to meet those standards,
i.e.,  they gave Hatch no "opportunity to present his views to the 
prison official charged with deciding whether to transfer him  to ...
segregation." 459 U.S. at 476. According to Hatch's  complaint, at the
January 20, 1994 Adjustment Board hear- ing, he "was not allowed to
have any witnesses, ... was not  allowed to have the writer of the
[disciplinary] report present,  to testify, [and] was [not] allowed to
give any testimony on  the record." Amended Compl. at 1. The District
challenges  none of these allegations.


The District claims that the availability of habeas corpus in  the D.C.
courts satisfies Hewitt's procedural requirements.  But we doubt that
resolution of a habeas claim would "occur  within a reasonable time
following an inmate's transfer" to  segregation, as Hewitt requires.
459 U.S. at 476 n.8. More- over, given Sandin's emphasis on preserving
the administra- tive authority of prison officials, we are reluctant
to shift  primary responsibility for ensuring compliance with the Due 
Process Clause from Lorton administrators to D.C. judges.


Thus, because Hatch did not receive the process required  by Hewitt,
and because Hatch might have persuaded Lorton  officials to reduce his
time in segregation had he had a fair  opportunity to present his
views, we cannot resolve this case  by taking the approach we followed
in Brown.


The District suggests a second way we might decide this  case without
applying Sandin's "atypical and significant hard- ship" test.
According to the District, Sandin's test supple- ments Hewitt's,
requiring Hatch to show not only that his  segregative confinement was
an "atypical and significant  hardship," but also that D.C. statutes
or regulations had  created an expectation that Lorton prisoners would
not face  such segregation absent certain substantive predicates. 


Claiming that Lorton regulations created no such expectation,  the
District argues that for this reason alone, Hatch had no  protected
liberty interest in avoiding segregative confine- ment.


We see no need to decide whether Sandin's test supple- ments or
supplants Hewitt's, for we disagree with the District  that D.C.
regulations governing Lorton contain no standards  or guidelines
limiting official discretion to place prisoners in  segregative
confinement. Those regulations make clear that  before prison
officials may place an inmate in administrative  segregation, "there
shall be a finding made that: (a) There is  a clear and present threat
to the safety of the resident; (b)  The resident poses a clear and
present threat to the safety of  others; or (c) The resident poses a
definite escape risk."  D.C. Mun. Regs. tit. 28, s 521.4; see also id.
ss 522.3, 531.2.  The regulations also require Lorton officials to
review an  inmate's placement in administrative segregation every
thirty  days, see id. s 527.1, and "[a]t each thirty-day review, it
shall  be the responsibility of the Board to determine whether the 
resident's return to the general population at the time of that 
particular review still poses an escape risk or security risk to  the
resident or others," id. s 527.2. The regulations autho- rize
adjustment segregation only after an inmate has been  found guilty of
violating Lorton's Code of Offenses, see id.  ss 505.1-505.3, 515.1,
and they limit the term of adjustment  segregation for inmates found
guilty of Class II offenses to  fourteen days, see id. s 505.2(c).


Like the Pennsylvania statute at issue in Hewitt, the D.C.  regulations
governing segregative confinement at Lorton thus  contain the
"repeated use of explicitly mandatory language in  connection with
requiring specific substantive predicates" that  prior to Sandin would
have "demand[ed] a conclusion that the  State has created a protected
liberty interest." Hewitt, 459  U.S. at 472. Therefore, even assuming
(as the District  argues) that Hewitt's test survives as an
independent ground  for denying the existence of protected liberty
interests, we  cannot avoid the key question at the heart of this
case: Was  Hatch's seven-month confinement in adjustment and


trative segregation an "atypical and significant hardship ...  in
relation to the ordinary incidents of prison life"?


III


Answering this question requires us to define the compara- tive
baseline--"ordinary incidents of prison life"--with speci- ficity.
Hatch argues that the proper baseline is the most  restrictive form of
confinement that Lorton officials may  impose in their unfettered
discretion. Claiming that Lorton  officials have no discretionary
authority to impose any form of  confinement other than assignment to
the general population,  Hatch argues that comparing the conditions he
faced in  segregation to those faced by prisoners in the general
popula- tion shows that he suffered an "atypical and significant 


We faced this same issue in Neal v. District of Columbia,  131 F.3d 172
(D.C. Cir. 1997), yet another case brought by a  Lorton prisoner
challenging his confinement in administrative  segregation under the
Due Process Clause. But in that case,  we had no need to decide
whether the proper test under  Sandin "is to compare [the]
circumstances [the inmate faced  in segregation] to those of the
general prison population"  because we found that even assuming that
to be the proper  comparison, the inmate had not suffered an "atypical
and  significant hardship" within the meaning of Sandin. Id. at  175.
Apart from the loss of work and other privileges,  administrative
segregation cost the inmate in Neal only "half  of his out-of-cell
time." Id. In contrast, when Lorton offi- cials transferred Hatch from
the general population to segre- gative confinement, he lost not only
his work privileges and  his access to the gym, library, mailroom,
health services, and  other facilities, but also more than 95 percent
of his out-of-cell  time. Indeed, Hatch claims that while in the
general popula- tion, he was confined "to being in his cell ... for
only eleven  (11) hours per day on weekdays, seven (7) hours per day
on  Friday, and Saturday nights, and the night before legal 
holidays." Hatch Br. at 6 (filed pro se Aug. 7, 1995); cf.  Roach Aff.


general population "are locked down in their cells a total of at  least
nine (9) hours per day"). While in segregation, by  comparison, he
"was confined to a cell for twenty three and  one half (231/2) hours
per day" and all forty-eight hours of the  weekend. Hatch Br. at 6,
10. In addition, prisoners in the  general population "are free to
move from place to place  within the prison complex by way of a
movement pass or  under Correctional Officer supervision," "are
allowed a mini- mum of one hour of recreation time daily," "may engage
in  Group Programs, recreation and religious activities daily,"  and
"have daily access to the telephone between the hours of  6:00 A.M.
and 12:00 Midnight." Roach Aff. p 3. Hatch "was  forced to [wear] hand
cuffs and leg irons whenever he left  [the segregation cell block],"
Hatch Br. at 9, "was not afford- ed any outside recreation at all,"
id. at 10, was isolated from  all other inmates when allowed out of
his cell, see id., and  received no legal telephone calls for ninety
days, see id. at 11.  We think these differences in confinement
conditions fore- close the approach we took in Neal, requiring us now
to  decide whether, as Hatch argues, conditions in the general 
population form the proper baseline for Sandin's "atypical  and
significant hardship" test. Cf. infra at 20 (explaining  that the
district court misread Sandin in concluding that  Hatch suffered no
"atypical and significant hardship" com- pared to conditions in the


Hatch claims that his proposed baseline follows directly  from the
Supreme Court's application of the "atypical and  significant
hardship" test in Sandin itself. Concluding that  the thirty-day
disciplinary segregation of a Hawaii prisoner  "did not present the
type of atypical, significant deprivation in  which a State might
conceivably create a liberty interest,"  Sandin said:


The record shows that, at the time of [the inmate's]  punishment,
disciplinary segregation, with insignificant  exceptions, mirrored
those conditions imposed upon in- mates in administrative segregation
and protective cus- tody.... Thus, Conner's confinement did not exceed
 similar, but totally discretionary, confinement in either 


duration or degree of restriction.... Based on a com- parison between
inmates inside and outside disciplinary  segregation, the State's
actions in placing him there for  30 days did not work a major
disruption in his environ- ment.


515 U.S. at 486 (footnotes omitted). Hatch reads this pas- sage--in
particular, the words "totally discretionary"--to  mean that "the
ordinary incidents of prison life" consist of the  most restrictive
confinement conditions that prison officials  may impose in their
unfettered discretion. According to  Hatch, while this theory meant
that conditions in administra- tive segregation or protective custody
comprised the proper  baseline in Sandin, here it means that
conditions in the  general population should serve as the baseline
because that  is the only form of confinement Lorton officials have
unfet- tered discretion to impose.


We disagree with Hatch's reading of Sandin. As Hatch  recognizes, the
phrase "similar, but totally discretionary, con- finement" in the
quoted passage refers to "administrative  segregation and protective
custody." At the time of the  events giving rise to Sandin, Hawaii
prison officials did not  have unfettered discretion to place inmates
in administrative  segregation or protective custody. State
regulations autho- rized administrative segregation


(1) Whenever the facility administrator or a designated  representative
determines that an inmate or ward  has committed or threatens to
commit a serious  infraction.


(2) Whenever the facility administrator or a designated 
representative, considering all the information avail- able, incuding
[sic] confidential or reliable heresay  [sic] sources, determines that
there is reasonable  cause to believe that the inmate or ward is a
threat  to: (A) Life or limb; (B) The security or good  government of
the facility; (C) The community.


(3) Whenever any similarly justifiable reasons exists  [sic].


Haw. Admin. Rule s 17-201-22 (1983). Hawaii regulations  also
provided:


Admission to protective custody may be made only where  there is reason
to believe that such action is necessary or  the inmate or ward
consents, in writing, to such confine- ment. Protective custody is
continued only as long as  necessary except where the inmate or ward
needs long  term protection and the facts requiring the confinement 
are documented.


Id. s 17-201-23. These regulations did not authorize prison  officials
to impose administrative segregation or protective  custody for no
reason at all. Because the Sandin Court was  fully aware of these
regulations, see 515 U.S. at 476 n.2 (citing  Haw. Admin. Rule ss
17-201-22, 17-201-23), we believe its  use of the words "totally
discretionary" cannot mean that  what prison officials may do in their
unfettered discretion is  the touchstone for elucidating "the ordinary
incidents of  prison life."


To be sure, Sandin nowhere directly explains why it used 
administrative segregation as the comparative baseline. But  given the
objectives Sandin sought to further, see supra at  5-6, we think the
reason is not that such confinement is  literally "totally
discretionary," but rather that prison officials  routinely impose
such confinement for non-punitive reasons  related to effective prison
management. Support for this  interpretation comes from what the Court
said in Hewitt  about administrative segregation:


It is plain that the transfer of an inmate to less  amenable and more
restrictive quarters for nonpunitive  reasons is well within the terms
of confinement ordinarily  contemplated by a prison sentence. The
phrase "admin- istrative segregation," as used by the state
authorities  here, appears to be something of a catchall: it may be 
used to protect the prisoner's safety, to protect other  inmates from
a particular prisoner, to break up potential- ly disruptive groups of
inmates, or simply to await later  classification or transfer. See 37
Pa. Code ss 95.104 and  95.106.... Accordingly, administrative


the sort of confinement that inmates should reasonably  anticipate
receiving at some point in their incarceration.


459 U.S. at 468. Like the Pennsylvania regulations in Hewitt,  the
Hawaii regulations in Sandin and the D.C. regulations in  this case
make clear that administrative segregation functions  as a "catchall,"
a flexible management tool for ensuring safety  and good order in
prison. See Haw. Admin. Rule ss 17-201- 22 to -24; D.C. Mun. Regs.
tit. 28, s 521. Given Sandin's  insistence on affording "appropriate
deference and flexibility  to state officials trying to manage a
volatile environment," 515  U.S. at 482, it makes sense that the Court
would treat  administrative segregation as an "ordinary incident of
prison  life." Such a baseline for identifying constitutionally
protect- ed liberty interests ensures that "the day-to-day management 
of prisons" will remain in the hands of prison administrators,  not


Reading Sandin to require that we look to conditions in  administrative
segregation as the proper baseline does not  end our analysis. Sandin
took two additional factors into  account. First, it observed that the
prisoner's confinement  "did not exceed similar ... confinement in
either duration or  degree of restriction." 515 U.S. at 486 (emphasis
added); see  id. ("[T]he State's action in placing him there for 30
days did  not work a major disruption in his environment."). When we 
compare Hatch's confinement to administrative segregation,  we must
therefore look not only to the nature of the depriva- tion (e.g., loss
of privileges, loss of out-of-cell time) but also to  its length in
evaluating its "atypicality" and "significance."  Second, Sandin noted
that the prisoner's thirty-day disciplin- ary segregation "was within
the range of confinement to be  normally expected for one serving an
indeterminate term of  30 years to life." Id. at 487. We read this to
mean that  "atypicality" also depends in part on the length of the
sen- tence the prisoner is serving. See id. at 485 (disciplinary 
segregation was not "a dramatic departure from the basic  conditions
of Conner's indeterminate sentence"); id. at 486  n.9 ("[T]he
conditions suffered were expected within the  contour of the actual
sentence imposed."). We have previous- ly interpreted Sandin just this
way. In Franklin v. District 


of Columbia, we said that courts must consider not only "the 
discipline involved" but also "the nature of the prisoner's  term of
incarceration" in determining "whether a prisoner's  'liberty' is
threatened." 163 F.3d 625, 634 (D.C. Cir. 1998).


To sum up, we interpret Sandin to mean that a deprivation  in prison
implicates a liberty interest protected by the Due  Process Clause
only when it imposes an "atypical and signifi- cant hardship" on an
inmate in relation to the most restrictive  confinement conditions
that prison officials, exercising their  administrative authority to
ensure institutional safety and  good order, routinely impose on
inmates serving similar sen- tences. We think this standard captures
what Sandin means  by the phrase "ordinary incidents of prison life."
While the  "incidents of prison life" encompass more or less
restrictive  forms of confinement depending on prison management im-
peratives, the term "ordinary" limits the comparative baseline  to
confinement conditions that prison officials routinely im- pose. We
also think our interpretation of the test is faithful  to the
principles animating Sandin: It ensures that prison  officials have
broad administrative authority to "fine-tun[e]  the [conditions] of
prison life," 515 U.S. at 483, while preserv- ing a zone of liberty
interests with " 'real substance' " protect- ed by the Due Process


We turn finally to the parties' competing claims regarding  the
significance of inter-prison inmate transfers for Sandin's  baseline.
According to Hatch, the baseline must be defined  by reference to
conditions at Lorton only. We agree with the  District, however, that
the possibility of transfer is one of the  "ordinary incidents of
prison life" for most prisoners in the  country, including those at
Lorton. See D.C. Code Ann.  s 24-425 (1981) (giving Attorney General
broad discretion to  transfer Lorton inmates to any federal prison);
cf. Meachum  v. Fano, 427 U.S. 215, 225 (1976) (holding that transfer
to  prison with more onerous conditions does not deprive a  prisoner
of constitutionally protected liberty "as long as pris- on officials
have discretion to transfer him for whatever  reason or for no reason
at all"). At the same time, we  disagree with the District that the
possibility of transfer 


means that the baseline must consist of the most restrictive 
conditions routinely imposed on inmates in any prison nation- wide,
including conditions at the federal penitentiary at Mar- ion,
Illinois, an especially restrictive prison where all inmates  are
locked down almost the entire day.


Sandin defined the "ordinary incidents of prison life" in  terms of the
"basic conditions" of a prisoner's sentence, 515  U.S. at 485, the
conditions "normally expected" for a prisoner  serving a given term,
id. at 487. What matters, therefore, is  not simply the possibility of
transfer but also its likelihood.  The mere fact that the Attorney
General has discretion to  transfer a Lorton inmate to prisons like
Marion does not  make such transfers "ordinary." Properly constructed,
San- din's baseline requires not mere inquiry into the most restric-
tive conditions prison officials have legal authority to impose  for
administrative reasons, but a factual determination of the  most
restrictive conditions prison officials "ordinarily" or  "routinely"


We thus think that to the extent Hatch might face more  burdensome
conditions at other prisons, those conditions be- come part of the
baseline only if it is likely both that inmates  serving sentences
similar to Hatch's actually will be trans- ferred to such prisons and
that once transferred they actually  will face such conditions. If, as
the District claims, conditions  for all inmates at Marion are more
burdensome than the most  restrictive conditions at Lorton that prison
officials routinely  impose in their administrative discretion, then
conditions at  Marion would form the proper baseline under Sandin if
the  District can show that transfers to Marion are "normally 
expected" for Lorton inmates serving sentences similar to  Hatch's.
Sandin, 515 U.S. at 487. Not only does the record  contain no
information about the frequency of inmate trans- fers from Lorton to
Marion, but the District's lawyer, asked  at oral argument "how many
D.C. prisoners go to Marion,"  said, "I don't have a number, but at
least one." She then  conceded that "[p]erhaps that one prisoner alone
would not  support our argument."


IV


This brings us to the disposition of this case. The district  court
compared the conditions of Hatch's segregative confine- ment (as he
described them) with conditions faced by prison- ers in the general
population. See Mem. Order at 3-4.  Finding these differences no
greater than the differences in  Sandin between that prisoner's
disciplinary segregation and  his confinement in the general
population, it then concluded  that Hatch suffered no "atypical and
significant hardship."  See id. at 5.


To be sure, Sandin observed in dictum that "the conditions  at Halawa
involve significant amounts of 'lockdown time' even  for inmates in
the general population." 515 U.S. at 486. But  as our earlier
discussion indicates, see supra at 14-15, San- din's holding turned on
a comparison of the prisoner's con- finement to administrative
segregation: "[A]t the time of  Conner's punishment, disciplinary
segregation, with insignifi- cant exceptions, mirrored those
conditions imposed upon in- mates in administrative segregation and
protective custody."  Id. Indeed, the Court noted that Hawaii inmates
in adminis- trative segregation receive only "one extra phone call and
one  extra visiting privilege" than inmates in disciplinary segrega-
tion. Id. at 476 n.2. The question the district court should  have
asked, therefore, is this: Were the differences between  the
conditions of Hatch's segregative confinement and the  conditions
routinely imposed on Lorton inmates serving simi- lar sentences,
including the usual conditions of administrative  segregation,
sufficiently greater than "one extra phone call  and one extra
visiting privilege" so as to constitute an "atypi- cal and significant


We thus reverse the district court's grant of summary  judgment for the
District and remand for further fact-finding  consistent with this
opinion. In evaluating whether Hatch  had a liberty interest in
avoiding adjustment segregation, the  district court should begin by
determining the usual condi- tions of administrative segregation at
Lorton. It should treat  those conditions as the baseline for
evaluating whether  Hatch's two-week adjustment segregation was an
"atypical  and significant hardship." If using that comparison the
court  finds that his adjustment segregation was "atypical and sig-


nificant," it should then take into account the possibility that  Hatch
will be transferred to other prisons. The district court  should
redefine the comparative baseline by reference to  more restrictive
conditions at other prisons if it finds that it is  likely both that
inmates serving sentences similar to Hatch's  will actually be
transferred to such prisons and that once  transferred they will
actually face such conditions. The term  "likely," as we use it here,
means not that the combination of  events must be more probable than
not, but that there must  be a substantial chance of its occurrence.


As to whether Hatch had a liberty interest in avoiding  administrative
segregation, the fact that routine conditions of  administrative
segregation form the proper baseline under  Sandin does not foreclose
Hatch's claim for two reasons.  First, Hatch alleges that although
twenty-nine weeks of his  segregation were nominally "administrative,"
he actually  spent his entire confinement in conditions of adjustment 
segregation. As long as this allegation remains undisputed,  the
district court should undertake the same comparative  analysis
outlined above. Second, even if the conditions Hatch  faced were no
more restrictive than ordinary conditions of  administrative
segregation, the district court should deter- mine whether its
duration--twenty-nine weeks, including  twenty weeks after the Housing
Board found that he no  longer posed a management problem--was
"atypical" com- pared to the length of administrative segregation
routinely  imposed on similarly situated prisoners. See Brooks, 112 
F.3d at 49 ("[T]he mere fact that [state] prison regulations  permit
extended administrative segregation does not tell how  frequently or
for what durations such segregation is [actually]  imposed.").


So ordered.